2018 CO 20
Colo.2018Background
- Adjacent Denver homeowners (Klosky/Bishop and the Loves) dispute ownership of a large catalpa tree whose trunk is ~74% on Klosky’s lot and ~26% on the Loves’ lot; the tree began life on Klosky’s property and later encroached onto the Loves’ property.
- Klosky sought to remove the tree; the Loves obtained a TRO and sued for declaratory relief and an injunction to prevent removal.
- At trial the court found the tree started on Klosky’s land, the parties did not plant or jointly maintain it, and it was not treated as a boundary; the court dismissed the Loves’ claims and dissolved the TRO.
- The court of appeals affirmed, interpreting Rhodig v. Keck as the controlling test for boundary/encroachment trees and holding the Loves had not shown joint ownership; two judges urged overruling Rhodig.
- The Colorado Supreme Court granted certiorari to decide whether to overrule Rhodig and to clarify the applicable rule for trees that migrate across property lines.
- The Supreme Court held Rhodig governs "encroachment trees": a tree that began entirely on one parcel and later grew onto another remains the property of the parcel where it began unless the owners jointly planted, jointly cared for, or treated it as a partition; applying Rhodig, the Loves failed to show joint ownership, so Klosky may remove the tree.
Issues
| Issue | Plaintiff's Argument (Loves) | Defendant's Argument (Klosky) | Held |
|---|---|---|---|
| Whether Rhodig v. Keck should be overruled and replaced with a rule treating any tree straddling a line as tenants-in-common | Rhodig is wrong; any tree that crosses a property line should be joint property (tenants-in-common) | Rhodig is correct for encroachment trees: ownership remains with owner of land where tree began unless joint planting/care/partition shown | Court declined to overrule Rhodig; kept Masters-type rule for encroachment trees |
| Whether the Loves proved a property interest in the tree under Rhodig’s test | The Loves argued they jointly cared for or treated the tree as a boundary and thus had an ownership interest | Klosky argued the tree began on his land, the parties did not jointly plant or maintain the tree, and it was not intended as a boundary | Trial findings supported that the tree began on Klosky’s land and there was no joint planting/care/partition; Loves failed to prove joint ownership; Klosky may remove the tree |
Key Cases Cited
- Rhodig v. Keck, 421 P.2d 729 (Colo. 1966) (establishes test applied to trees that began on one parcel and later encroached on another: ownership remains with original landowner unless joint planting, joint care, or treatment as boundary)
- Dubois v. Beaver, 25 N.Y. 123 (N.Y. 1862) (discusses distinction between "true boundary" trees and encroachment trees)
- Holmberg v. Bergin, 172 N.W.2d 739 (Minn. 1969) (treats encroaching trees differently from true boundary-line trees; requires more than mere trunk crossing to establish joint ownership)
- Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377 (Colo. 2001) (explains elements of a private-nuisance claim relevant to disputes over encroaching vegetation)
- Hoery v. United States, 64 P.3d 214 (Colo. 2003) (discusses principles limiting nuisance liability and relevant to whether a landowner can be liable for harm caused by property they jointly own)